9.5 Conclusion

The severe problems encountered by the Ogoni People as a result of the oil wealth of the Delta region were outlined in this chapter. For the Ogoni, oil exploration and exploitation have had a devastating effect on their environment and on the local economy. The existing balance of the inhabitant's livelihood, which was based on fishery and agriculture, was severely disturbed. On the political plane, the military dictatorship of General Abacha in the nineties was accused of numerous human rights violations. Shell, the leading oil company in the region, was blamed, among others, for complicity with the Abacha regime, environmental pollution, threatening food security and health. In particular, Shell was said to have requested the national security forces for protection of their operations in the Niger Delta and to have contributed by furnishing equipments, including arms, and other aid. In addition, the political situation at that time did not allow for the Ogoni's participation as stakeholders in the decision-making process affecting their homeland. Neither did they profit from the financial benefits of oil exploitation, which went directly to the Federal Government. As corruption indices point out, Nigeria is said to have had a long history of corruption. Therefore, it is likely that even the thin percentage of profits actually allocated to the region has generally 'disappeared'.

The execution of Saro-Wiwa and the eight other Ogoni in 1995 was the beginning of a new era which, unfortunately, did not bring much relief for the Ogoni People. In 1996, a UN fact-finding mission reported that the trial and execution of Saro-Wiwa and the others violated a number of fundamental rights of the defendants as guaranteed both by Nigerian law and by international human rights instruments to which Nigeria is a party. In the meantime, family members of the sentenced activists fled Nigeria in fear of their lives. Expatriated abroad, they commenced legal proceedings in 1996 still pending today against Shell based on the ATCA alleging complicity in human rights violations perpetuated by the then Nigerian military regime (Wiwa v. Shell).

The same year, complaints were filed against the Government of Nigeria under the ACHPR to the AHRC. The allegations stated that the Government did not prevent the oil exploitation in the Niger Delta from leading to human rights violations. The complaints were awarded. The AHRC thereby recognised collective rights of the Ogoni People regarding natural resources and the environment. Moreover, the AHRC applied ' modern academic thinking' on how to protect economic, social and cultural rights by emphasising the duties of a State Party: (1) not to allow private actors to destroy or contaminate food sources; (2) to protect individuals from non-state actors with regard to the right of housing; and (3) to prevent violations by private actors with regard to the right to life. Furthermore, the AHRC recommended that the Government investigate the allegations of human rights abuses, prosecute those responsible, award compensations to the victims, and, finally, ensure environmental clean-up.

Concerning the environment, a decision favourable to the Niger Delta People was reached in Shell v. Ijaw Aborigines of Bayelsa State, where in 2006 the Federal High Court of Nigeria ordered SPDC, the entity which runs Shell's operations in Nigeria to pay US$1.5 billion in damages to the Ijaw community as compensation for degrading the environment. However, SPDC has since appealed the judgment and has refused to pay. Similarly, farmers and fishermen from the Delta region have publicly announced in May 2008 the preparation of a court case against Shell in the Netherlands, alleging damages to their food sources caused by oil spills.

Another controversial issue in the region is gas flaring. Whereas the Government and Shell are committed to phasing out gas flaring, the practice has not yet been stopped. As mentioned, the decision of the Federal High Court in November 2005, which found that gas flaring violates certain rights guaranteed by the Nigerian Constitution and the ACHPR, was appealed by SPDC and a stay of execution was granted.

Still today, the Ogoni seem not to benefit from the oil exploitation of their homeland and suffer the effects of the same oil industry. As the overview of the legal proceedings in section 9.2 has illustrated, these cases and claims did not bring any concrete results for the Delta people.

As discussed in section 9.3, human rights and the role of companies in that respect represents a complex matter. Although most Governments, international organisations, NGOs and academia, in one way or the other, express the insight that private actors, including multinational companies, should respect human rights, the legal reality shows a different picture. On the one hand, international human rights treaties do not allow human rights tribunals to assess claims against companies directly. Nevertheless, it is possible to request human rights tribunals and commissions to issue an order against a Government for it to undertake measures against private actors, in order to ensure respect for human rights. This was demonstrated in section 9.2 by reporting on the ruling of the African Human Rights Commission ordering the Nigerian Government to actively protect its people from human rights violations. On the other hand, international private law is for a large part organised territorially. As shown in section 9.2, various legal obstacles, such as forum non conveniens, together with financial obstacles make it complicated for local people to commence a legal claim against a parent company located in another country. In addition, legal proceedings before a foreign court are often lengthy; the multinational companies do not hesitate to extend the proceeding to appellate courts. Consequently, it might well be concluded that both the national legal systems and the international public legal systems do not provide practical solutions in the short term for the environmental and human rights problems as a result of the on-going globalisation process. Companies have recognised this and have expressed their willingness to cooperate with Governments and other stakeholders to achieve solutions and results.

As section 9.4 outlined, Shell is actively seeking ways in which to cooperate with the Ogoni People and the Nigerian Government. For instance, by the adoption of codes of conduct, its participation in the reconciliation process and the training of local contractors. Its sustainable community development programme in Nigeria and annual reports provide an insight into its corporate activities and the distribution of oil revenues. These actions show commitment to CSR. Certainly, the complex reality of the Niger Delta, including ethnic tension and violence, the high level of corruption, the weak governance structure and the Chinese competitors knocking at the door will not make CSR an easy win. Natural resources and easy money can in fact amount to a ' curse' on sustainable development. However, as has been observed in this case study, a multi-stakeholder dialogue and transparency on business operations and income flows appear to be the best option for the people concerned rather than having to await the outcome of a lengthy court case.

Since CSR is at an early stage, there is still room for improvement. An important point for attention is the quality and quantity of sustainability reporting. Although GRI continuously improves its reporting standards and formulates industry criteria, companies can make a more concrete contribution. They can improve instructions and control mechanisms, provide additional information in their annual reports and decide to proceed with full external verification of such information. Only information based on true facts can assist people in formulating their "wish-list on corporate behaviour". At the same time, companies can defend themselves against political rent-seekers, sabotage and false allegations. Transparency based on correct facts will support the transition from human rights conflicts to CSR.